Opinion
No. CV04 041 25 65 S
February 8, 2007
MEMORANDUM OF DECISION
In June and July 2006, the matter was tried to the Court. This is essentially a dispute between the plaintiff subcontractor, Superior Roofing and Insulation, LLC, and the defendant contractor, L. Holzner Electric Construction Company, regarding a renovation project. It is undisputed that the parties agreed that the plaintiff would perform on two aspects of the project, namely, the roofing and gutter replacement, and that it did so. Moreover, the court orally ruled from the bench on the plaintiff's claims of unfair trade practices and fraud. Therefore, the only remaining issues before the court are the following: the plaintiffs claim that the defendant breached the parties' agreement by failing to pay the plaintiff in full for the work it performed on the roofing and gutter replacement aspects of the project, for which the plaintiff claims the defendant owes it $49,267, and the defendant's counterclaim that the plaintiff partially breached the agreement by refusing to perform a third aspect of the project, the siding work, for $20,000 as a result of which it incurred damages that should be set off from the amount, if any, that it owes to the plaintiff. This is an issue of contract formation, and its resolution depends on whether the parties agreed that the plaintiff would undertake and complete the siding work for $20,000. On October 11, 2006, the defendant submitted its post-trial brief. On October 12, 2006, the plaintiff submitted its post-trial brief.
The court has reviewed the trial testimony, the trial exhibits and the parties' briefs. Based upon the credible evidence presented, coupled with the exhibits and the reasonable inferences drawn therefrom, the court has found the following facts.
On August 13, 2003, the defendant's president, Mark Holzner, contracted to perform a renovation project at Stern Village, a senior citizen housing complex in Trumbull, Connecticut. The defendant received bids from the plaintiff's vice president, Lawrence P. Czajkowski, on three aspects of the project: roofing, gutter replacement and siding work. Czajkowski premised these bids on information provided to the plaintiff by the defendant and the bids were subject to on-site inspection by the plaintiff. This was the first business transaction between the parties.
In October 2003, the defendant sent the plaintiff three purchase orders dated October 14, 2003, each of which related to a specific aspect of the renovation project. The first purchase order was for roofing in the amount of $127,000, the second for gutter replacement in the amount of $9,950 and the third for siding and aluminum work in the amount of $20,000.
On October 27, 2003, the defendant sent the plaintiff a contract dated October 14, 2003. Article 2 of said contract provided that the plaintiff "shall execute . . . roofing, siding and gutter replacement," and article 4 of said contract provided that the contract price was $156,950. In short, the agreement, drafted by the defendant, incorporated all three purchase orders. Like the purchase orders, this agreement was also not signed by the plaintiff — in fact, neither party signed it. The evidence shows that, in its original bid for the siding work, the plaintiff quoted a price of $25,850, which was based on the defendant's estimate that the work would need 70 squares of siding material. On November 14, 2003, after the plaintiff found that the siding work would require 101 squares of material, it rejected the defendant's purchase order for $20,000, and made a counteroffer to do the siding work for $30,000 or $31,000. The defendant, through its project manager, Joel Yencho, rejected this counteroffer. Eventually, Holzner did the siding work itself.
On November 3, 2006, the plaintiff submitted a signed and notarized "Application and Certificate for Payment" (the 11/03 application) to the defendant in which it listed the original contract sum as $156,950. On November 18, 2006, however, the plaintiff submitted a second signed and notarized application to the defendant in witch it listed this sum as $136,950, or the total amount listed in the contract, $156,950, less the amount that the defendant had proposed to pay for the siding work, $20,000. The change was made after the plaintiff made its inspection and counteroffer.
"The rules governing contract formation are well settled. To form a valid and binding agreement contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties . . . To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to be based on an identical understanding by the parties." (Internal quotation marks omitted.) Duplissie v. Devino, 96 Conn.App. 673, 688, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006). Contract formation presents a question of fact resolved in view of all of the evidence; id., 687-88; and is an essential element for a breach of contract claim. McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 503-04, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 7 (2006).
"In order for an enforceable contract to exist, the court must find that the parties' minds had truly met . . . If there has been a misunderstanding between the parties, or a misapprehension by one or both so that their minds have never met, no contract has been entered into by them and the court will not make for them a contract which they themselves did not make . . . [A]n agreement must be definite and certain as to its terms and requirements." (Internal quotation marks omitted.) Electrical Wholesalers, Inc. v. M.J.B. Corp., 99 Conn.App. 294, 302 (2007). Mutual assent is based not on the parties' secret intentions; Atlantic National Trust, LLC v. Van Eck, 89 Conn.App. 200, 206, 873 A.2d 179 (2005); but on their intentions as manifested "by written or spoken words or by other acts . . ." (Internal quotation marks omitted.) Precision Mechanical Services, Inc. v. Shelton Yacht Cabana Club, Inc., 97 Conn.App. 258, 263, 903 A.2d 692, cert. denied, 280 Conn. 928, 909 A.2d 524 (2006). Mutual assent presents a question of fact. M.J. Daly Sons, Inc. v. West Haven, 66 Conn.App. 41, 48, 783 A.2d 1138, cert, denied, 258 Conn. 944, 786 A.2d 430 (2001). In the present case, the defendant has the burden to prove mutuality. Cheverie v. Ashcraft Gerel, 65 Conn.App. 425, 439, 783 A.2d 474, cert. denied, 258 Conn. 932, 785 A.2d 228 (2001).
According to the defendant, the evidence establishes that the parties entered into a binding contract in which the plaintiff agreed to perform the siding work for $20,000. It relies on the following arguments: the unsigned contract together with the signed 11/03 application constituted a binding contract, the plaintiff did not establish that it mistakenly relied on the defendant's information in preparing its bid, and, by its conduct, the plaintiff manifested its assent to the unsigned contract, or created an appearance thereof.
The plaintiff did not, however, raise this issue.
An implied contract is an agreement inferred from the parties' conduct rather than expressed in words. Janusauskas v. Fichman, 68 Conn.App. 672, 676, 793 A.2d 1109 (2002). The defendant's brief states that, notwithstanding the unsigned contract, "all of the plaintiff's actions before and after it received the written contract from the defendant supports the conclusion that the plaintiff was bound by the terms of the contract to do the siding work and his refusal to do so constituted a partial breach of the contract."
The documents that the defendant relies on are inadequate evidence of the plaintiff's assent to undertake and complete the siding work. Neither party signed the contract. Holzner's testimony that the defendant sent the contract to the plaintiff as a matter of convenience, and not out of necessity is belied by the letter which accompanied the contract, in which the defendant's contract administrator directed Czajkowski to review the document and sign "all 4 copies, keep 2 for yourself, and return the remaining 2 to me at our office." Czajkowski testified that he did not sign the document because it was not correct in that the parties had not agreed on the siding aspect, and that he notified Yencho of this shortly after he received the contract. Moreover, Yencho testified, "whenever I sign someone up for this contract I review everything." Here, however, no one "signed up" for a contract. It is also noted that because this was the first business transaction between the parties, the defendant cannot rely on the theory of prior course of conduct.
Regarding the 11/03 application, the evidence indicates that it is a payment requisition form that the defendant supplied to the plaintiff for the plaintiff to use in invoicing the defendant for its work on the project. By signing this form, Czajkowski certified that the plaintiff had completed the portion of the work for which he was requesting payment. He was not certifying the descriptive statement on the top of the form that the contract was for "roofing, siding, gutter," or the entry of the figure of $156,950 as the "original contract sum." These items are incidental to the document, and, regardless of who entered the figures and completed the top portion of the form, they do not provide evidence that the plaintiff agreed to perform the siding work for $20,000.
As to the continuation sheet that is attached to the application, in which the plaintiff stated that it was storing $5,000 worth of siding, Czajkowski explained that he was also employed as a salesman, and agreed to provide Yencho with some siding materials as a favor.
In a related context, our courts have recognized "evidence of the existence and the terms of the contract . . . [can be inferred from] a series of related writings, which, taken together, describe the essential terms and conditions of the contract." (Internal quotation marks omitted.) Electrical Wholesalers, Inc. v. M.J.B. Corp., supra, 99 Conn.App. 302. "The issue is not so easy to resolve . . . when a mixture of signed and unsigned writings is relied upon to establish a sufficient memorandum. The determination is not to be made mechanically, but is a matter of evidentiary sufficiency. What is required is that the writings sufficiently evidence the fact that a contract was made and what its terms are, so that under the circumstances of the particular case, there is no serious possibility that the assertion of the contract is false." (Internal quotation marks omitted.) Id., 303. Here, the documents that the defendant relies upon are not sufficient evidence that the parties entered into a contract for the siding work.
The defendant's contention that the plaintiff engaged in conduct that indicates that it assented to the terms of the unsigned agreements is premised on the principle that "[p]arties are bound to the terms of a contract even though it is not signed if their assent is otherwise indicated." (Internal quotation marks omitted.) Ullman, Perlmutter Sklaver v. Byers, 96 Conn.App. 501, 505-06, 900 A.2d 602 (2006).
The defendant contends that the following conduct demonstrates that the plaintiff accepted a contractual obligation to perform the siding work: Czajkowski offered to do the siding work for $20,000, the plaintiff received the contract but did not inform the defendant that it did not agree to do the siding work until November 18, the plaintiff submitted the 11/03 application, it ordered and stored some siding materials, it submitted bills and accepted payment for these materials, and Czajkowski submitted a siding sample to the architect.
Czajkowski's testimony credibly refuted the defendant's argument that the parties reached an oral agreement regarding the siding. He also testified that shortly after he received the written contract, which was apparently mailed to him on October 27, 2003, he made several attempts to contact Yencho to tell him that the document was incorrect.
As noted above, the plaintiff's submission of the 11/03 application does not provide evidence that the defendant agreed to do the siding work for $20,000, and Czajkowski credibly testified that he obtained and stored the siding materials as a favor to Yencho. Likewise, Czajkowski's submission of siding materials to the architect is not conduct that is sufficient to show the plaintiff's consent to the terms of the contract and purchase order for the siding.
The court finds that the purchase orders for the roofing and gutter work were accepted and the parties did enter into agreement for that work. With respect to the siding and aluminum work, however, the court finds that there is insufficient evidence that the parties entered into an agreement. The defendant unilaterally elected to perform that work at its own expense and apparently to its detriment.
Accordingly, the Court concludes that the defendant has failed to prove by a preponderance of the evidence that the parties had a meeting of the minds as to the siding work and the Court finds that the parties did not have a contract regarding siding work. Accordingly, the court enters judgment in favor of the plaintiff as to the defendant's counterclaim. As to count one of the plaintiff's complaint, it is undisputed that the plaintiff completed the roofing and gutter replacement work. Therefore, judgment enters in favor of the plaintiff as to the plaintiff's claim for breach of contract.
The value of the roofing work is found to be $127,000, and the value of the gutter work is found to be $9,950, for a total of $136,950. The defendant previously made payments to the plaintiff, leaving a balance due of $49,267. Additionally, 5 percent of that total amount, $6,847.50, is retainage. The defendants are ordered to release the retainage, and to pay the plaintiff $49,267, plus the costs of the action and the statutory interest that has accrued from the date of the debt.